Published : 10 Feb, 2023, 11:06 am
New Delhi: The Supreme Court on Friday upheld the validity of the All India Bar Examination (AIBE) that law graduates are required to take to be allowed to practice before courts [Anuj Aggarwal v. Union of India].
A Constitution Bench of Justices Sanjay Kishan Kaul, Sanjiv Khanna, AS Oka, Vikram Nath and JK Maheshwari held that the powers of the Bar Council of India (BCI) to conduct the exam were adequate, adding,
“We are thus of the opinion that while considering the questions referred to us, the only conclusion which can be laid is the judgment of this Court in V Sudeer on the powers of BCI cannot be sustained and we cannot hold that it lays down the correct position of law.”
On whether the AIBE should be held pre or post-enrolment, the Court said,
“The effect of this would be that it is left to the BCI as to what stage the AIBE is to be held – pre or post enrolment. There are consequences which would arise in holding the AIBE in either scenario, and it is not for this Court to delve into them.”
The Court added,
“We are inclined to accept the suggestion of the Amicus that the students who appeared in all examinations to be eligible to pursue the final semester of the final year. On production of proof , they could be allowed to take AIBE. The result of AIBE would be subject to the person passing all components of college examination.”
The Bench also noted that there was, more often that not, a hiatus period between passing a law university exam and date of enrolment. During this time, the law graduate would be able to do all tasks allied to the legal profession other than the function of acting or pleading before courts, it said.
It also called for an appropriate rule to be framed laying down that an enrolled advocate who takes up employment in a non-legal context for a substantial period would be deemed to be a new enrolee, and would be required to take AIBE again.
“Even if a person has a law degree, it does not mean that his ability to asssst the court would continue with them if there are long hiatus period of time in some unconnected job.”
Further, the Bench called for uniformity in the charging of fee for the exam, since different State Bar Councils were charging different amounts.
The Supreme Court had on September 28 reserved its judgment in the batch of pleas challenging the validity of the exam, which is required to be cleared by law graduates before they can practice before courts.
The Court examined the validity of Rules 9 to 11 of the Bar Council of India (BCI) Rules for being violative of Sections 16, 24 and 30 of the Advocates Act, as well as Articles 14 and 19(1)(g) of the Constitution.
Rule 9 makes passing the AIBE mandatory for every advocate to practice. Rule 10 enables the BCI to conduct the exam, and Rule 11 deals with the procedure for issuance of certificate of practice.
The questions referred for the Bench’s consideration were:
(1) Whether Pre-enrolment training in terms of Bar Council of India Training Rules, 1995 framed under Section 24(3)(d) of the Advocates Act, 1961 could be validly prescribed by the Bar Council of India and if so whether the decision of this Court in V. Sudeer vs. Bar Council of India & Anr. [(1999) 3 SCC 176)] requires reconsideration?
(2) Whether a pre-enrolment examination can be prescribed by the Bar Council of India under the Advocates Act, 1961?
(3) In case questions Nos.1 and 2 are answered in the negative whether a post-enrolment examination can be validly prescribed by the Bar Council of India in terms of Section 49(1)(ah) of the Advocates Act, 1961?
During the hearings, Justice Kaul orally indicated that the Bench would aim to fine-tune the current scheme of the AIBE. He had also recommended that the difficulty level of the AIBE should be determined based on the number of enrolled advocates required in the country.
The judge had underscored that since the exam set the minimum standard required, it should be of adequate quality to determine the competence to practice. He had even suggested that the BCI carry out an analysis in this regard.
Then Attorney General (AG) for India KK Venugopal had argued in the matter that conducting the AIBE prior to enrolment would be more appropriate than having it after enrolment.
Counsel for the petitioners had suggested that undergraduate students be allowed to write the exam in their final year of law school so as to save time.
Apart from Venugopal, Senior Advocate KV Viswanathan appeared in the matter as Amicus Curiae. BCI was represented by its Chairperson and Senior Advocate Manan Kumar Mishra.
Advocates Kartik Seth and VK Biju appeared for the petitioners.